Review of Irish Merger Control 2003 - 2016 in Seven Charts
in detail, inside: Introduction 1 Deals Notified Annually 1 Decision Types 2 Comparison of EU and Irish Intervention Rates 2 Phase 1 (P1) & Phase 2 (P2) Timeframes 3 Key Investigations and Outcomes 4 Industries Involved 4 Parties Involved 4 McCann FitzGerald Competition, Regulated Markets & EU Law Group 5
Modelled on the EU system, Ireland's merger control regime is a "file and wait" system, requiring parties to notifiable transactions to prenotify their deal and suspend closing pending the outcome of the review process.
The Competition and Consumer Protection Commission (the "CCPC") charged with primary responsibility for Irish merger control has strictly defined time frames within which to complete its review; either at Phase 1 (typically, 30 working days) or, if the transaction involves substantive competition law issues, following a more protracted Phase 2 investigation of up to an additional 90 working days (subject to extension in certain circumstances). Absent an explicit CCPC decision within these deadlines, a deal is deemed approved.
Transactions must be notified if:
(i) the aggregate Irish turnover of the parties is not less than 50 million; and
(ii) at least two of the parties involved in the transaction have Irish turnover of over 3 million each.
In addition, "media mergers" (including the acquisition of any Irish media business by another media operator whether active in the State or not) must be notified regardless of the turnover of the parties involved.
Failure to notify deals that meet these thresholds is a criminal offence; notifiable transactions completed in disregard of the suspensory requirement may be void in Irish law.
A number of important legislative exclusions to the merger control rules were enacted to deal with the Irish banking crisis. These exclusions essentially disapply Irish merger control law to certain banking transactions. For example, the Irish Bank Resolution Corporation Act 2013 excludes the application of Irish merger control rules to sales or transfers of any assets or liabilities by IBRC acting through a special liquidator.
McCann FitzGerald's Competition, EU Law & Regulated Markets Group acted in over 200 of the 789 transactions notified over the past fourteen years. During that time, no transaction the firm has filed has been prohibited.
mccann fitzgerald's competition, regulated markets, eu & trade law group acted in over 200 of the 789 transactions notified over the past thirteen years.
Deals Notified Annually
In total, 789 transactions were notified to the Competition and Consumer Protection Commission (formerly the Competition Authority) from 1 January 2003 to 31 December 2016.
80 2004 2005
60 81 84
* A revision to Competition Authority guidelines on the merger thresholds in late 2006 resulted in fewer transactions being notified in 2007, although merger activity remained high that year.
** Revision of merger thresholds, effectiveas of 31 October 2014, has resulted in more transactions being notifiable to the Competion and Consumer Protection Commission
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Total Det7e7rm4 inations
Over the fourteen year period from 20032016, out of a total of 27 Phase 2 investigations, three deals have been blocked, representing less than 0.5% of the total number of notifications. Of the 789 deals notified from 2003 to 2016, eight were withdrawn following notification meaning that no decision was taken in respect of those cases. Thus, of the 789 deals notified, 774 deals have resulted in decisions, with a further seven
transactions awaiting determination by the CCPC (as of 3 January 2017).
In 2016, one of the 67 notified deals (ie 1.5% of the annual total) involved an in-depth Phase 2 investigation. This investigation related to Panda's acquisition of rival Greenstar. CCPC approval was conditional on divestment of Greenstar's domestic waste collection business in two Dublin areas.
Comparison of EU and Irish Intervention Rates
Irish Statistics 20032016
EU Statistics 20032016
*T o compare Irish and EU figures over a common timeframe, we used publicly available figures compiled by the European Commission for the period 2003 2016. We classified the following four European Commission and Irish CCPC decision types as interventions: (i) Phase 1 conditional approvals; (ii) Phase 2 conditional approvals; (iii) prohibitions; and (iv) cases in which parties withdrew their filing. For the Irish figures, we include Eason/Argosy which, although not notified to the CCPC (or Competition Authority as it then was) under Irish merger control rules, was abandoned after CCPC interaction with the parties. For Irish figures, we excluded decisions where CCPC intervention was restricted to ancillary restraint issues (on the basis that such decisions were not ref lected in the European Commission figures). Including CCPC decisions involving modification to ancillary restraints would increase the percentage of CCPC 2003 2016 interventions to 4.3%.
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Phase 1 (P1) & Phase 2 (P2) Timeframes
No Phase 2 investigations were initiated in respect of notifications filed in 2011.
50 100 150 200
2016 2015 2014 2013 2012 2010 2009 2008
P1 (86 days)
P1 (121 days)
P2 (68 days) PandaGreen/Greenstar: 189 days
P2 (48 days) Baxter Healthcare/Fannin Compounding: 134 days
P1 (120 days)
P2 (64 days) Topaz/Esso: 184 days
P1 (62 days)
P2 (61 days) Valeo/Wardell/Robert Roberts: 123 days
P1 (83 days)
P2 (56 days) Glanbia/Wexford Creameries: 139 days
P1 (71 days)
P2 (54 days) Top Snacks/KP Snacks: 125 days
P1 (91 days)
P2 (48 days) Uniphar/CMR: 139 days
P1 (28 days)
P2 (83 days) Stena/DFDS: 111 days
P1 (27 days)
P2 (44 days) Barnett/Origin/Hall: 71 days
P1 (77 days)
P2 (63 days) Greenstar/Veolia (Ireland): 140 days
P1 (41 days)
P1 (71 days) Metro/Herald Am: 112 days
P1 (120 days)
P2 (63 days) Heineken/S&N: 183 days
P1 (69 days)
P2 (91 days) Kerry/Breeo: 160 days
P1 (102 days)
P2 (28 days) Communicorp/SRH: 130 days
P1 (64 days)
P2 (48 days) Galco/Sperrin/Sperrin: 112 days
P1 (70 days)
P2 (41 days) GDG/AEPL: 111days
P1 (20 days)
P2 (47 days) Applied Materials Inc./Brooks Software: 67 days
P1 (30 days)
P2 (50 days) Coillte/Weyerhaeuser: 80 days
P1 (29 days)
P2 (92 days) Kingspan/Xtratherm: 121 days
P1 (30 days)
P2 (63 days) Tetra Laval/Carlisle: 93 days
P1 (100 days)
P2 (64 days) UGC (Chorus)/NTL: 164 days
P1 (68 days)
P2 (50 days) Grafton Group PLC/Heiton Group plc: 118 days
P1 (69 days)
P2 (92 days) IBM/Schlumberger: 161 days
P1 (27 days)
P2 (71 days) Uniphar/Whelehan: 98 days
P1 (27 days) P1 (28 days)
P2 (75 days) Stena/P&O: 102 days P2 (95 days) Scottish Radio Holdings/ FM104: 123 days
P1 (30 days)
P2 (42 days) Dawn Meats/Galtee Meats: 72 days
Average Phase 1 60 days
Average Phase 2 61 days
Average Total 121 days
P rohibited Outright
Wit hd r aw n
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Key Investigations and Outcomes
*mo2 ntoop1 o- ly
IBM / Schlumberger (#1 and #2 in the relevant market)
3 to 2
Kingspan / Xtratherm (#1 and #2 = 85%)
4 to 3
Kerry Group / Breeo (#1 and #2 = 40%)
5 to 4 (and above)
Communicorp / Emap (#1 and #2 = 80%)
Eason / Argosy** (#1 and #2 in the relevant market)
Heineken / S&N (#2 and #3 = 55%)
Premier Foods / RHM (#1 and #2 = 90%)
C&C / Britvic (#1 and #2 = 65%)
Uniphar / Cahill May Roberts (#2 and #3 = c. 45%)
Topaz/Esso (#1 and #2 in highly concentrated market with high entry barriers)
C leared Unconditionally C onditional Clearance P rohibited Outright Withdrawn
Grafton / Heiton (#1 and #2 = 70%)
Galco / Sperrin (#1 and #2 = 50%)
Stena / P&O (#1 and #4 = 50%)
C&C / Largo (#1 and #2 = 45%)
Uniphar / Whelehan (#2 and #4 = 35%)
Barnett / Origin / Hall (#2 and #4 = <40%)
United Care / Pharmexx (#1 and #3 in "highly concentrated" market)
* Number of participants pre- and post-merger
** As a "non-notifiable" merger (ie one that did not meet Irish statutory reporting thresholds), the Eason/Argosy deal was blocked under substantive competition rules rather than merger control provisions.
Coillte / Weyerhaeuser (vertical overlap)
UGC (Chorus) / NTL (minority cross-ownership)
Baxter Healthcare/ Fannin Compounding (failing firm defence)
4% Construction/Building Supply 6% Leisure & Travel 6% Retail 8% Pharma/Healthcare 11% Support Services 11% Dairy, Food and Beverage 12% IT/Telecoms 12% Industrial (including Energy) 13% Financial Services 17% Media
Irish deals (involving an Irish target)
Irish deals (involving an Irish target)
*This ref lects revisions made to the Irish notification thresholds in late 2014.
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Competition, Regulated Markets & EU Law Group
With an unmatched record for achieving results, McCann FitzGerald's Competition, Regulated Markets & EU Law Group is widely recognised as being at the forefront of this practice area in Ireland.
McCann FitzGerald has `an excellent depth of knowledge and ability to communicate'.
The Legal 500, 2016
All law firms say they are client-focused, but it really rings true with McCann FitzGerald. The partners are unpretentious, and I feel it is all about the client. The lawyers are engaging, incredibly focused at meeting difficult deadlines, very pragmatic, and take a lot of time to really understand the commercial context and tailor the advice."
McCann FitzGerald's clients rate it "head and shoulders above the rest."
The Legal 500, 2015
McCann FitzGerald is known for its outstanding team handling important EU and competition mandates, particularly merger control and state aid. Clients benefit from the firm's Brussels offering. "The team is very authoritative in its advice; it is alert to the international ramifications on our business." "The firm has very broad areas of knowledge and is very good at pulling teams together as required."
The Competition, Regulated Markets & EU Law Group is recognised as an `Elite' competition practice.
Global Competition Review, Ireland Survey 2014
This accomplished team provides a comprehensive service across this area, and clients highlight the strength of the group's expert, considered advice. "The team is staffed by smart, quick-thinking lawyers who have the ability to see different angles, and are not afraid to give unpopular advice." "The hallmark of the firm is precise and intellectual counsel."
As one of the few Irish firms with a Brussels office, McCann FitzGerald has a definite edge in competition work. Clients highlight the seamless, high-quality service they receive from the team. Sources say: "It is practical and understands the balance between getting things done and winning every point." "It is an open, informal and cohesive team."
Clients highlight the seamless, highquality service they receive from the team. Sources say: "It is practical and understands the balance between getting things done and winning every point." "It is an open, informal and cohesive team."
Philip Andrews is described as "exceptionally analytical and gives advice that is commercial and focused on the real world."
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Philip Andrews Partner, Head of Competition, Regulated Markets, EU & Trade Law Group
ddi +353-1-611 9143
email philip.andrews@ mccannfitzgerald.com
Ronan Dunne Senior Associate, Competition, Regulated Markets, EU & Trade Law Group
ddi +353-1-611 9166
email ronan.dunne@ mccannfitzgerald.com
Laura Treacy Senior Associate, Competition, Regulated Markets, EU & Trade Law Group
ddi +353-1-511 1595
email laura.treacy@ mccannfitzgerald.com
Sean O'Dea Associate, Competition, Regulated Markets, EU & Trade Law Group
ddi +353-1-607 1243
email sean.odea@ mccannfitzgerald.com
This document is for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.
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